A New Approach in Water Management or Business as Usual? The Milk River, Montana

18 JOURNAL OF ENVIRONMENTAL LAW & LITIGATION 1, 2003

Posted: 20 Jan 2016

See all articles by Barbara A. Cosens

Barbara A. Cosens

University of Idaho - College of Law

Date Written: January 18, 2016

Abstract

The allocation, management and development of water in the West is a highly dynamic area. Yet the basic law governing allocation of western water has not changed substantially in over 100 years, and is steeped in archaic concepts fashioned to address situations no longer relevant. Why this dichotomy between what is happening on the ground and the law? In short, the resource itself, our demand on it, and our view of its value is changing at a rate that outpaces the ability of the law to adapt. Supply fluctuates on both a seasonal and long-term basis. Estimates indicate that 1.2 billion people globally experience a shortage of potable water and given current population trends, that number will only increase. Many Indian reservations in the United States, like the developing world, lack potable water. In the West, growing urban demand and recent recognition of tribal rights and critical habitat needs place increasing strain on this finite, yet ever renewable resource. To meet these needs in the face of growing concern with the cost of water development on the integrity of ecosystems, the focus in water policy both globally and in the West has moved away from the twentieth century emphasis on water development and toward improvements in management and efficiency. Yet many of these efforts run headlong into the archaic law governing water allocation. Western water policymakers and practitioners find themselves in a constant struggle to introduce sufficient flexibility into the law to address changes in supply, demand, and values. In the effort to address modern problems, negotiation plays an increasingly important role. Collaborative processes aimed at resolving local issues are taking place in many of the water basins in the West. Frequently, what began as a focused process to settle, for example, tribal water right claims, has expanded to cover basin-wide issues. The current ad hoc approach to settlement has given rise to a variety of processes, thus providing a fertile ground for testing a variety of approaches and solutions designed to address water allocation problems. The growing use of negotiation to solve problems not adequately addressed by existing law may very well herald a new era for water distribution and management in the West, one tailored to the problems faced by specific water basins and structured around governance that mimics basin boundaries. This paper explores one such effort in a typical western basin: the Milk River.

Keywords: Native American water right settlement, reserved water rights, water conflict resolution

Suggested Citation

Cosens, Barbara A., A New Approach in Water Management or Business as Usual? The Milk River, Montana (January 18, 2016). 18 JOURNAL OF ENVIRONMENTAL LAW & LITIGATION 1, 2003, Available at SSRN: https://ssrn.com/abstract=2717836

Barbara A. Cosens (Contact Author)

University of Idaho - College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States
208 885-6298 (Phone)
208 885-2859 (Fax)

HOME PAGE: http://www.uidaho.edu/law/people/faculty/bcosens

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